Lafayette Home Hospital, Inc.

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 830 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lafayette Home Hospital, Inc. and Local 1199,
National Union of Hospital and Health Care
Employees, a/w Retail, Wholesale and Department
Store Union, AFL-CIO. Cases 25-CA-7252 and
25-CA-7303
August 30, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On February 7, 1977, Administrative Law Judge
Wellington A. Gillis issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Lafayette Home Hospital, Inc., Lafayette,
Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified.
1. Substitute the following for paragraph !(a):
"(a) Maintaining any rule or regulation which
prohibits employees from soliciting on behalf of any
labor organization on hospital premises, in other
than immediate patient care areas, during employees'
nonworking time, and promulgating or enforcing any
rule or regulation which prohibits employees from
distributing literature on behalf of any labor organi-
zation in nonwork areas of the hospital during their
nonworking time."
2. Add the following new paragraph l(b) and
reletter the subsequent paragraph:
"(b) Interrogating employees concerning the identi-
ty of other employees who engage in union activities
or support a union."
3. Substitute the following for paragraph 2(a):
231 NLRB No. 141
"(a) Announce to its employees that it has
rescinded its unlawful no-solicitation and no-distri-
bution rules and inform them that they have the right
to solicit on behalf of any labor organization on
hospital premises, in other than immediate patient
care areas, during their nonworking time, and to
distribute literature on behalf of any labor organiza-
tion in nonwork areas of the hospital during their
nonworking time."
4. Substitute the attached notice for that of the
Administrative Law Judge.
I The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Contrary to the Administrative Law Judge, we conclude that Respon-
dent, through Supervisor Miller. unlawfully interrogated employee Brown.
In so concluding, we rely on the fact that, in the midst of their discussion of
the need for the Union in general terms, Miller abruptly asked Brown "who
the head of the Union was." Given this abrupt injection into their
conversation of such a pointed question, and because the question itself
could reasonably be understood by the employee as seeking the identity of
the leading union adherent at the hospital, we find that Miller's question
tended to interfere with the employees' Sec. 7 rights Accordingly, we
conclude that Respondent thereby violated Sec. 8(a)( I) and shall provide an
appropriate remedy therefor. Cf. United Service Corporation, d b'a Forest
Park Ambulance Service, 206 NLRB 550, 551 552 (1973).
In addition, Member Jenkins finds that Respondent violated Sec. 8(a)(1)
by the admitted statement of Head Nurse Hayes to employee Fishman that
Hayes had no use for a nurse to be active in a union in the health field, and
that Fishman was not to talk union to the staff on duty at any time.
:1 In his recommended Order, the Administrative Law Judge provided.
inter alia, that Respondent be required to cease and desist from restricting
the right of employees, and to announce to employees that they have the
right. "to solicit and distribute for the Union during their nonworking time
in areas of the hospital other than immediate patient care areas." We,
however, shall modify these portions of the recommended Order to conform
to the language used in St. John's Hospital and School of Nursing, Inc., 222
NLRB I 150 (1976), and Lenox Hill Hospital, 225 NLRB 1237 (1976).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain any rule or regulation
which prohibits employees from soliciting on
behalf of any labor organization on hospital
premises, in other than immediate patient care
areas, during employees' nonworking time, and
WE WILL NOT promulgate or enforce any rule or
regulation which prohibits employees from dis-
tributing literature on behalf of any labor organi-
zation in nonwork areas of the hospital during
their nonworking time.
WE WILL NOT interrogate employees concern-
ing the identity of other employees who engage in
union activities or who support a union.
830
LAFAYETTE HOME HOSPITAL
WE WILL NOT in any like manner interfere with,
restrain, or coerce our employees in the exercise
of their Section 7 rights.
WE WILL announce to our employees that we
have rescinded our unlawful no-solicitation and
no-distribution rules and inform them that they
have the right to solicit on behalf of any labor
organization on hospital premises in other than
immediate patient care areas, during their non-
working time, and to distribute literature on
behalf of any labor organization in nonwork areas
of the hospital during their nonworking time.
All our employees are free to become, remain, or to
refrain from becoming or remaining members of
Local 1199, National Union of Hospital and Health
Care Employees, a/w Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, or any other labor
organization, except to the extent that such right may
be affected by an agreement requiring membership
in a labor organization as a condition of employ-
ment, as authorized in Section 8(a)(3) of the Act, as
modified by the Labor Management Reporting and
Disclosure Act of 1959.
LAFAYETTE HOME
HOSPITAL, INC.
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge:
Upon charges filed on July 31, 1975, and August 18, 1975,
in Case 25-CA-7252 and 25-CA-7303, respectively, as
amended in both cases on September 18, 1975, by Local
1199, National Union of Hospital and Health Care
Employees, a/w Retail, Wholesale and Department Store
Union, AFL-CIO, hereinafter referred to as the Union, the
General Counsel for the National Labor Relations Board,
hereinafter referred to as the Board, issued a consolidated
complaint on September 19, 1975, which was amended at
the hearing, against Lafayette Home Hospital, Inc.,
hereinafter referred to as the Respondent or the Employer,
alleging violations of Section 8(a)(1) and (3) and Section
2(6) and (7) of the National Labor Relations Act, as
amended (61 Stat. 136), hereinafter referred to as the Act.
A timely answer to the consolidated complaint was
subsequently filed by the Respondent wherein it denied the
commission of any unfair labor practices.
At a hearing, held in Lafayette, Indiana, all parties were
represented by counsel, and were afforded full opportunity
to examine and cross-examine witnesses, to introduce
evidence pertinent to the issues, and to engage in oral
argument. Subsequent to the close of hearing, within the
time extended for filing, timely briefs were submitted by
counsel for the General Counsel and for the Respondent.
Upon the entire record in this proceeding,' and from my
observation of the witnesses, and their demeanor on the
witness stand, and upon substantial, reliable evidence,
"considered along with the consistency and inherent
probability of testimony" (Universal Camera Corporation v.
N.L.R.B., 340 U.S. 474, 496 (1951)), I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Lafayette Home Hospital, Inc., is an Indiana corporation
maintaining its principal office and place of business at
Lafayette, Indiana, where it is engaged in the operation of
a nonprofit hospital and in the provision of health care
services. During the year immediately preceding the
issuance of complaint, the Respondent performed services
the gross value of which exceeded $500,000. During this
same period the Respondent received goods valued in
excess of $50,000 transported to its place of business in
interstate commerce directly from States other than the
State of Indiana. The parties admit, and I find, that the
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
I find that Local 1199, National Union of Hospital and
Health Care Employees, a/w Retail, Wholesale and
Department Store Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
i. Whether, on certain occasions between February
and August 1975, supervisors of the Respondent engaged
in conduct violative of Section 8(a)(Xl1) of the Act.
2. Whether the Respondent maintains or enforces
unlawful rules pertaining to soliciting or the distribution of
union literature on hospital property.
3. Whether, in discharging employee Janet Hicks on
July 8, 1975, at the end of her 90-day probationary period,
the Respondent did so because of her union activities.
4. Whether, in issuing a disciplinary action report on
nurse Ernestine Fishman on June 16, 1975, and subse-
quently transferring her to another ward, the Respondent
did so because of her union activities.
B. The Facts
i. Alleged 8(a)(l) conduct
At the meeting in late November 1974, attended by a
number of employees of the hospital who expressed an
interest in a union, officials of the Union commenced a
campaign among Respondent's employees. Subsequently,
leaflets were passed out, cards were signed, and, during
December into February, meetings were held at the union
hall every couple of weeks. After slacking off during the
I Errors in the transcript have been noted and corrected.
831
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spring, meetings were again held about every week to 10
days, June through August.
During this period certain conversations involving the
Union allegedly took place between Respondent's supervi-
sors and its employees. Evaughn Zills, a former employee
who worked on Two Main under Head Nurse Martha
Hayes, testified that during an employee meeting in late
January 1975, held in the kitchen, Hayes stated that a
union was trying to get into the hospital, that they were
handing out leaflets near the emergency room entrance,
and suggested that the employees could avoid them by
leaving through the back entrance. According to Zills,
Hayes continued by generally painting a bad picture of the
Union. Further asserted details of this conversation I deem
unnecessary.
The testimony generally of Zills I find unworthy of
belief. Apart from her lack of demeanor, Zills is a good
friend of discriminatee Ernestine Fishman, had been
formally reprimanded for her work performance by Hayes
on two prior occasions, and was being reviewed by Hayes
for a possible third. As to this incident, Zills' testimony is
without corroboration and is specifically refuted by Hayes
and nurse Janet Prather, whom Zills placed at the
meeting.2
Zills testified that a couple of weeks after Ernestine
Fishman was transferred to Two Main, which occurred on
February 16, 1975, Hayes initiated a conversation with her
in her office, allegedly warning her that Fishman was an
advocate of the Union, that Fishman had been placed on
Hayes' floor for closer observation, that she should be
careful because the hospital was waiting for a chance to fire
Fishman, and that "all those that associated with her or
were known to be friends of hers would be fired too."
Hayes, a nurse at the hospital for 31 years with strong
convictions concerning the nursing profession, and who
candidly admitted that she was opposed to nurses in
unions, testified throughout in a most forthright manner. I
credit her flat denial of Zills' uncorroborated testimony as
to this matter.
Zills testified that during the middle of May, while at
lunch in the cafeteria, on two occasions with no one else
present, Hayes asked her if Fishman had been talking to
her about the Union. The first time Zills allegedly replied,
no, and the second time, yes, followed by her statement
that the employees had a right to organize. Upon being led
by counsel, Zills also recalled that Hayes had said that
anybody messing with the Union could lose his job. Zills
testified further that, in the middle of June at the Two
Main nursing station, Hayes said to a number of employ-
ees, including Janet Prather, that she had had enough of
this, that she was not going to have people on her floor
harassed and that she wanted Miss Fishman off the floor.
Hayes denied that these conversations ever took place.
Prather corroborated her denial as to the alleged June
incident. I credit both denials of the uncorroborated
testimony of Zills and find, as in the earlier instances, that
they did not occur.
2 This testimony was offered by the General Counsel, not as an 8(aXI)
violation. but to show knowledge. As indicated hereinafter. the record
adequately reveals that Hayes was well aware of union activity among the
hospital staff. including Fishman.
As hereinafter discussed, Fishman was transferred to
Two Main under Head Nurse Hayes on February 16, 1975.
A day or so later, Hayes talked with Fishman as she did
every nurse upon being assigned to her floor. After Hayes
told her why she had been transferred and what was
expected of her, Hayes, according to her own testimony,
told Fishman that she was aware that she was involved in
the Union and that she (Hayes) had no use for a nurse to
be active in a union in the health field, and that she was
asking her not to talk union to the staff "on duty at any
time." Fishman's version differs from that of Hayes mainly
in that Fishman testified that Hayes told her she was not to
talk to any of her employees about the Union. I credit
Hayes' version. In expressing her opposition to the Union,
unaccompanied by threats or interrogation, Hayes did not
transgress permissible bounds. Fishman's adherence to the
Union was well known at this point, and Hayes' admoni-
tion to her not to talk union to the staff while she was on
duty was within her province as head nurse. 3
According to Frederick Franz, an employee plumber, on
August 5, following receipt of a hospital letter distributed
to employees opposing the Union, Bob Smith, one of
several employees gathered in the maintenance shop,
initiated a conversation with Koven Smith, a supervisor,
stating that he felt that the newsletter was the best thing the
hospital could have done to promote union activity. When
Smith asked why they thought this, Franz spoke, stating
that he had been in other unions, and that signing a union
card does not take away your right to talk with supervisors.
Smith then said he could not understand what complaints
the hospital employees had for wanting a union. Franz
then explained his own views on the matter. In view of the
context in which this occurred, the fact that the union
aspect of the conversation was initiated by one of the
employees, and that Smith's reply was in effect an
uncoercive statement on his part, I find such to not
constitute unlawful interrogation within the meaning of
Section 8(aX 1) of the Act.
On August 12, when David Brown, a dish machine
operator, reported for work, he was not wearing his
uniform shirt but, rather, a dirty unattractive shirt. His
supervisor, Food Production Manager Ronald Miller,
asked him to go home and put on the proper uniform,
giving him the option of doing so right after the breakfast
line and docking himself the time or waiting until his
breakfast break. Later in the day, Miller asked Brown what
had happened to his attitude, stating that he had had a
good evaluation on his probation form, and that Miller
could not understand his deliberately coming to work
wearing a soiled shirt. Brown replied that the employees
needed a union to bridge the gap between management
and the employees. In response to Brown's reply, Miller
asked whether the Union could solve all their problems,
and Brown said that it could. At this point, Miller asked
Brown if he knew who the head of the Union was. Brown
replied that he did not. Brown then indicated that he was
going to file charges against Miller for violation of the Taft-
3 In finding no violation as to this incident, I also find that it does not
support the General Counsel's position concerning the enforcement of an
unlawful written no-solicitation rule hereinafter discussed.
832
LAFAYETTE HOME HOSPITAL
Hartley Act. Miller responded by stating that that was his
privilege.
Miller's inquiry of Brown as to whether he knew who the
head of the Union was might, under different circumstanc-
es, be considered a technical violation of the Act. In view
of the fact, however, that the conversation commenced
with a genuine interest by Miller in the welfare of Brown
with Miller having no idea that the mention of the Union
would ensue, coupled with the fact that the record contains
no evidence that Miller at any other time engaged in
employee threats or interrogation, I am of the opinion, and
so find, that such inquiry on this occasion does not warrant
a finding of unlawful conduct.
2. No-solicitation and no-distribution rules
Employee Franz testified that, on a morning in late July
1975, he passed out some union leaflets in the hospital
parking lot, and, at noon, posted some union meeting
schedules in the hospital laundry. The following noon,
while eating lunch, his supervisor, Koven Smith, called him
into his office and told him that it was against hospital
policy to post anything, including union literature, without
going through the personnel department for clearance.
According to Franz, Smith also told him that he was not to
have union literature on the hospital grounds. Franz
replied, saying that it was his understanding that as long as
he did it during breaktime and lunchtime it was all right.
Smith replied that he thought Franz was mistaken. Smith
denied that on this occasion he told Franz that he could
not have union literature on hospital grounds, but was not
questioned as to the rest of that attributed to him. I credit
Smith's denial as to the latter.
Contained in the Respondent's employee handbook as
revised October 1974 is the following rule entitled, "Selling
and Soliciting":
Solicitation or canvassing on behalf of organizations or
special causes, or selling or collecting of any kind from
either patients or employees is not permitted within the
hospital proper or on any property owned or controlled
by the hospital. Exceptions, in the case of community
projects, will be allowed on written approval by the
Administrator.
Personnel Director John Bell testified that recently, when
the hospital came under Taft-Hartley, this rule was no
longer enforced and that employees are permitted to
distribute union literature and to solicit in nonwork areas
on hospital property during rest breaks, lunch breaks, and
on nonworktime. Bell further testified, however, that,
although all supervisors have been informed of the change
in the rule, the rule as written has not been corrected nor
has any announcement been made to the employees to this
effect, and that the broad rule still appears in the employee
handbook which is handed out to all employees.
Under these circumstances, since the written rule has not
been changed and appears in the handbook distributed to
employees, it is reasonable to conclude that an employee
' See St. Johns' Hospital and School of Nursing, Inc., 222 NLRB 1150
(1976): Baptist Hospital, Inc., 223 NLRB 344 (1976).
- St. Peter's Medical Center. 223 NLRB 1022 (1976).
would assume that the written rule is the rule still in effect.
Inasmuch as the written no-solicitation rule generally
prohibits solicitation of any kind within the hospital or on
the hospital grounds, its maintenance is violative of Section
8(a)(1) of the Act. Accordingly, I find that the Respondent
maintained an unlawful no-solicitation rule to the extent
that it prohibits all solicitation in all areas of the hospital
other than in immediate patient care areas,4 thereby
restraining and coercing employees in violation of Section
8(a)(1).5 I further find that Superintendent Smith's admoni-
tion to Franz to the effect that it was against hospital policy
to post anything, including union literature, without going
through the personnel department for clearance, supports
the complaint allegation that the Respondent orally
promulgated and enforced a rule prohibiting the distribu-
tion of union literature on hospital grounds, in violation of
Section 8(a)(1).
As there is no indication that Respondent's employees
have been notified that either unlawful rule has been
rescinded or informed as to the extent to which they are
now authorized to solicit and distribute for the Union, I
shall recommend that the Respondent announce to its
employees that it has rescinded its unlawful no-solicitation
and no-distribution rules and inform them that they have
the right to solicit on behalf of any labor organization
during nonworking time on the hospital premises other
than in immediate patient care areas and to distribute
union literature during nonworking time in nonworking
areas other than in immediate patient care areas.6
3. The termination of Janet Hicks
Janet Hicks, a 17-year-old recent high school graduate,
was hired by Respondent on April 8, 1975, as a cafeteria
attendant in the dietary department, in which position she
worked until her termination on July 8, 1975. Hicks was
hired by, and worked under, Supervisor Patricia Bizer. At
the time of her hire, Bizer explained the job to Hicks, going
through the work schedules, the job description, the dress
code, and covering speedy counter service and emergency
information. Bizer told Hicks that she would be a relief
attendant covering all three shifts, and indicated to her that
she would be a probationary employee for 90 days, at the
end of which time she would be given an evaluation to
determine whether she would become a permanent em-
ployee.
During the early weeks of her employment, Hicks was
slow to learn the work and Bizer found it necessary to
spend extra time following up on her work and prodding
her to get things done. Approximately 6 weeks into her
probationary period, Bizer had a discussion with Hicks
concerning her performance on the job. Bizer explained to
her that she was not happy with her work record, that her
serving techniques were deficient, her cleaning techniques
were not up to standard, and that she (Bizer) was having
trouble getting her to do certain tasks. Bizer explained to
Hicks that she was warning her at this point in order for
her to improve prior to her evaluation at the end of her
probationary period.
6 See Lenor Hill Hospital. 225 NLRB 1237 (1976); Valley Hospital, Ltd..
226 NLRB 309 (1976).
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For a period following this discussion, according to
Bizer, Hicks' work performance showed improvement, but
then she commenced slipping back into her old habits.
From time to time Bizer would point out a deficiency and
would ask Hicks to redo something, and Hicks complied.
According to Bizer, Hicks was deficient in cleaning
techniques and on occasion, contrary to policy, was prone
to disappear from the serving line in order to get something
for a customer. On a number of occasions, Bizer found it
necessary to admonish her for slamming carts against the
walls. Bizer characterized Hicks' attitude throughout as
being basically disinterested in her job. During this period,
on a weekly basis, Bizer spoke with Food Production
Manager Ronald Miller concerning her problems with
Hicks. Hicks admitted that, on several occasions during the
week prior to July 8, Bizer approached her about her work,
specifically with respect to wiping dining room tables and
cleaning the microwave oven.
Finally, toward the end of her 90-day probationary
period, it came time for Bizer to make an evaluation of
Hicks' work performance. On July 7, after filling out the
report but before talking with Hicks concerning it, Bizer
spoke with Ronald Miller concerning Hicks and her
evaluation of her. Bizer, who had never terminated an
employee before, registered compassion for Hicks who was
to enter school shortly, but told Miller that she felt that
Hicks was not an asset to the department. Bizer read over
the evaluation to Miller. Miller then asked Bizer, whose
intention to leave her employment at the hospital in the
near future was common knowledge, whether she would
keep Hicks on the basis of the evaluation were she (Bizer)
staying on. Bizer replied that she would not. Miller told
Bizer that the decision was up to her, that he would back
her either way she decided. While Bizer contemplated
giving Hicks an extension of time on her probationary
period, for which there was precedent, she decided entirely
on her own that Hicks should be terminated.
Bizer's performance evaluation report indicated that, of
16 job factors to be checked, Hicks was above standard in
none, met the standard in 12, and was below standard in 4.
Bizer's written comments on the report reflected that Hicks
was quick but that her work demanded constant followup,
that she exhibited poor attitude and abuse toward
equipment, and that her acceptance of criticism, although
rated standard, seemed to fall more toward the negative.
On the reverse side of the report, Bizer was more specific in
enumerating those factors giving rise to her unfavorable
evaluation, specifics relating to poor attitude, need for
constant supervision, and abuse of equipment.
On July 8, Bizer met with Hicks, went over the report
with her, and told her that based on the evaluation she was
to be terminated. Hicks signed at the bottom of the report,
noting in writing that she had seen the evaluation but
disagreed with it. According to Hicks' testimony, she asked
Bizer if this had anything to do with her union activities,
and Bizer replied that, "this was something she had
thought of when she was writing the evaluation up, that she
had been thinking that the Union was real important to me
7 I was most impressed with the demeanor while testifying of two
important witnesses in this proceeding. One is Patricia Bizer. I found her to
he a most credible witness whose demeanor and manner in answering
and this was something real important but it hadn't
affected her decision at all." Hicks finished out the day, at
the end of which she was terminated.
Analysis and Conclusions
Contrary to the assertions of the Respondent that Hicks
was terminated at the end of her probationary period solely
because of her poor job performance rendering her an
unsatisfactory employee, the General Counsel alleges that
Hicks was discharged due to having engaged in union
activities.
With respect to her union activity, Hicks testified that
during April she discussed the Union once or twice a week
with one employee, namely, David Brown, and that she
signed a union card on May 7. Hicks arranged for a
meeting with the union organizer, Stephen Poor, on June
25, which was followed a few days later by a union
meeting, concerning which she had contacted some five or
six employees in the dietary department. Hicks also
attended one other general meeting prior to July 9, and
several thereafter. During the 3-week period between June
16 and her July 8 discharge, Hicks also distributed
literature and passed union cards among Respondent's
employees, many of which were subsequently returned to
her and, in turn, to Poor.
Thus, summed up, the record reflects that Hicks was an
employee with a poor work performance who also was an
active supporter of the Union. It also reveals that her less
than satisfactory performance on the job commenced from
the outset and that such performance and a warning to
improve preceded her overt activity on behalf of the
Union, which did not occur until the last 3 or 4 weeks of
her probationary period.
To what extent Bizer was aware of Hicks' union activities
is not reflected in the record. While it appears that Bizer
knew that the Union was important to Hicks, she testified
that at no time did she ever hear of or see Hicks soliciting,
passing out handbills or cards on behalf of the Union, or
engaging in any other union activity. Bizer, who no longer
is employed by the Respondent and whose intention to
leave its employ was commonly known at the time of her
termination decision, is not charged with any other
unlawful conduct. Nor is there record evidence reflecting
antiunion conversations or animus on her part. Bizer
testified, truthfully I find, that union considerations had
not a thing to do with her evaluation of Hicks' work
performance and subsequent decision to terminate.7
I find that Hicks was terminated at the end of her
probationary period for reasons connected with her job
performance, and that the General Counsel has failed to
prove by a preponderance of the credible evidence the
complaint allegation that Respondent discriminatorily
discharged her in violation of Section 8(aX3) of the Act.
questions on both direct and cross-examination was impressive. I believe her
and credit her testimony.
834
LAFAYETTE HOME HOSPITAL
4. The alleged discriminatory treatment of
Ernestine Fishman
Ernestine Fishman was hired by the Respondent on May
20, 1974, as a graduate nurse, and, in August, became a
registered nurse. As such she worked the night shift on the
Two North under Night Supervisor Ruth Brown. In early
February 1975, Fishman asked for a transfer to the day
shift. On February 16, she was transferred to Two Main
under Head Nurse Martha Hayes. Just prior to the
transfer, the associate director of nursing, Doris Bowman,
told Hayes that Fishman would be coming to her floor for
orientation to days, and in hopes that she could improve
her nursing care and her personal care and appearance.
Hayes had a full staff and Bowman indicated that this was
to be a temporary assignment. On the second or third day,
as was her custom with each new nurse on her floor, Hayes
talked with Fishman concerning the reason for her
transfer, specifically because there had been some diffi-
culty on nights, that she was being orientated for days.
Hayes told her that she was to improve her appearance, her
uniform, and her body. During this conversation, accord-
ing to Hayes' own testimony, Hayes told Fishman that she
"knew she was involved in the Union and I had no use for
a nurse for a union to be active in the health field, and that
I would ask her not to talk to the staff on duty at any
time."
During the immediate period that followed, Fishman's
appearance improved, but, according to Hayes, not to her
standard. On a number of occasions Hayes spoke to
Fishman concerning her shoes, her cap, the excessive time
she took to pass medication, and the fact that she spent too
much time with patients resulting in her work not being
done. On one occasion, Hayes talked with Fishman about
complaints of other RNs concerning the time she took to
do her work, resulting in their having to "carry a double."
On another occasion, Hayes found it necessary to admon-
ish Fishman for not adhering to her policy that a nurse
passing medicine shall not empty bedpans and "answer
lights," such policy based on cleanliness and the need to
eliminate medicinal errors.
On May 9, Hayes gave Fishman a written employee
evaluation and, during the discussion, indicated to Fish-
man that she was a good nurse, that her appearance was
improving, but, based upon reports from other nurses and
aides, that she talked about the Union too much during
lunches and the other nurses resented it. Hayes also
admonished Fishman for disobeying her instructions by
counseling an aide where Hayes had told her to observe the
employee only and to report to her on the aide's
performance. The written evaluation, which generally was
good, contained Hayes' comments as follows: "Tina
Fishman is a good nurse and patients like her. Her attitude
seems to have changed some for the better since she came
on the floor. My only complaint is-she feels the need to
be involved in the lives of a couple aides, which the
conversation carrys on from the dining room to the floor
and sometimes interferes with the work being done. My
nurses object to going to lunch with her because she refuses
to talk about anything else except union which they feel
lunchtime is a time a person should have to relax."
Thereafter, on May 22, Hayes made a request of the
director of nursing that Fishman be transferred from her
floor. The request was turned down to see if things would
work out better. On June 10, upon returning from a few
days' vacation and receiving complaints concerning Fish-
man from Supervisor Hamady "that the floor was really
bad," Hayes filled out a disciplinary action report on
Fishman and, on the same day again requested that she be
transferred off her floor. The report contained the follow-
ing handwritten comments of Hayes:
On May 22, '75 I asked that Tina Fishman be
transferred off of 2nd Main - because of her general
attitude & open discussion of her thoughts is upsetting
my RN's, L.P.N.s. Also her influence on two of my
aides. I was asked to re-orientate her from nights to
encourage her to improve her appearance & attitudes. I
feel as a nurse she is fairly capable, but it is other
interferences that are very dissatisfying. She will pick
out one or two patients on the floor & demand for
things to be done for them, or to ask the doctors to get
more help (welfare) for them. Doctors resent this.
When Mrs. Hamady or Mrs. Prather are in charge &
they don't act on her request "right now" she keeps at
them all day, regardless how busy. When she & Mrs.
Hamady was on alone, she gave medications only, Mrs.
Hamady was in charge, did the treatments & all the
charts. It takes her two hours at times to give
medications to one team [10-11 patients].
I wrote again this am June 2, for her to be
transferred for I feel I have orientated her - as for
neatness, but her attitude remains the same & keeps me
& my staff upset.
Fishman asked for Hayes to remove the disciplinary
report, a request over which Hayes has no control.
Fishman then wrote her own comments on the reverse side
of the report as follows:
i. Even on the job I fall under the protection of the
Ist Amendment and can exercise freedom of speech
except where confidential medical information is
divulged.
2. In working with Mrs. Hamady it was my
understanding that I pass medication and she do
treatments. In addition, I said to her, "Is there
something I can do further to help you or is there
something I'm doing wrong." None of the things that
are mentioned here were stated to me by her. The
problem was that during Mrs. Hayes' vacation we
needed more help on the floor or maybe the supervisor
relieving us so we could have a lunch break.
3. It is true I have taken longer to pass medication
when patients were more serious and had difficulty
swallowing and taking medications. Upon occasion
other nurses have also taken longer than usual. Further,
when nurses rush errors occur as when six medications
were not signed out for [Sunday, June 15].
4. That complaint was made when I inquired of the
headnurse if we could in some way help a patient with
financing an electric wheelchair [this patient had little
use of his hands]. Mrs. Hayes attitude was that no one
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever helped her financially and this was outside the
scope of nursing concern. I feel the fact of complete
disability on the part of the patient was being ignored.
5. The real issue is my support of the National
Hospital Union 1199. It is my support of this union that
has caused Mrs. Hayes to cite me for disciplinary
action.
On June 17, in writing attached to the disciplinary report,
Hayes recorded the following: "On reading the comments
of Tina Fishman after the Disciplinary Action of June 16, I
want to make this comment. I did not take disciplinary
action because she is a member of Union 1199. I took it
because she causes so much dissatisfaction and keeps the
staff in an upheaval all the time - which is not for good
nursing care."
Fishman remained on Two Main for a few days, was
assigned to different hospital areas (called floating) for a
short period, took a 2-week vacation in July, returned, and
floated for another 2 weeks. In August she was asked by
the assistant director of nursing, Mary Everhart, if she
would like to be placed in orthopedics, and, when Fishman
indicated that she would, Fishman was transferred to the
orthopedic ward on Three North.
Analysis and Conclusions
The General Counsel asserts that, in issuing the disciplin-
ary action report on June 16, 1975, and subsequently
transferring Ernestine Fishman to a different floor and to a
more arduous job, the Respondent did so because of her
union activities in violation of Section 8(a)(3) of the Act.
The Respondent denies the discriminatory allegation, and
asserts that the action taken with respect to Fishman was
based upon her poor work performance, her poor attitude
and disregard for authority, her lack of cooperation, and
the disruption which she created while temporarily as-
signed to Two Main.
It is clear from the record that Fishman was an early
leader in the drive to organize the hospital employees, that
she signed a union card in November 1974 and served on
the union committee, that she was active in her attendance
at union meetings at the Center Labor Council in Lafayette
commencing in late 1974 through March 1975, when
meetings ceased during April through June and then
subsequently thereto, and that, in addition to espousing the
Union's cause among her fellow employees, she signed up a
number of nurses aides. It is equally clear that Hayes,
although perhaps not on notice as to the totality of her
activity, was fully aware of Fishman's intense interest in
the Union, and was free to voluntarily admit her aware-
ness. Further, that Hayes was opposed to unions in the
nursing profession was also admitted by Hayes.
While these factors in the usual discharge situation might
well warrant a finding of unlawful motivation and a
discriminatory termination, I am firmly and unequivocally
convinced that such was not the case here with respect to
8 To the extent that there is a conflict in testimony on any given matter
as between Hayes and Fishman, and such does exist, I credit Hayes. I found
Hayes to be a very honest, forthright, and credible witness, who freely
admitted to facts against her interest, and whose demeanor on the witness
stand throughout was truly impressive. While Fishman was also candid on a
Fishman's transfer. And this conviction is based almost
exclusively on the combined testimony of Fishman and
Hayes. The common thread that permeates the testimony
of both is the existence of a complete difference in
philosophy, attitude, and views as to the nursing profes-
sion. patient care, and authority. Mrs. Hayes, a registered
nurse at the hospital for 31 years, is clearly of the "old
school," one who believes in following the strict rules in the
practice of nursing and the care of patients, and believes
that a nurse is a professional with a duty to care for
patients in an efficient and dispassionate manner. On the
other hand, Ms. Fishman, as she chose to be called, a
young girl new to the profession, is admittedly possessed of
a liberal philosophy toward life in general and in her
approach to the nursing practice in particular. In short, it is
readily apparent that, as between Hayes and Fishman,
there existed from the beginning an obvious clash in
personalities.
The implication, if not outright admission, is that, upon
transfer to Hayes' ward, Fishman resented the authority of
Hayes and the strict standards under which she operated
her ward. Fishman's total disregard for this authority and
certain of the standards is a matter of record. 8
Hayes denied the accusation at the time of the disciplin-
ary action report and again on the witness stand that
Fishman's involvement with the Union had anything to do
with the disciplinary action report and the requested
transfer. On the record as a whole, and based upon my
observation of her while testifying, I specifically credit
Hayes as to her testimony that "I asked for a transfer
because she cause [sic] dissatisfaction and kept my floor in
an upheaval. She did not do her work well. She was not a
permanent nurse on my floor. She was there for orientation
and I felt I had gone as far with her as I could." I am
further of the opinion, and so find, that Hayes felt that she
had grounds for issuing the disciplinary action report on
June 16 and that she did so for the reasons she expressed
on the face of the report and not because of Fishman's
union sympathies.
Nor, apart from the motivation for Hayes' action, does it
appear that Fishman was opposed to the transfer, as she
testified that she did not mind being transferred since "It
was obvious that Mrs. Hayes and I had different ideas
about patient care, and that since we didn't get along I
wouldn't mind being transferred."
Finally, I find no credible record evidence to support the
General Counsel's assertion that Fishman was transferred
"to more arduous or less agreeable job tasks." Upon
leaving Hayes' floor in the latter part of June and before
being permanently assigned to orthopedics with her
acquiescence in August, Fishman floated, performing
nursing duties from day to day in different wards of the
hospital. "Floating" is a normal occurrence, with some
nurses floating all of the time. The RN work to which
Fishman was assigned during this period was the same type
work she had been doing on Two Main. While it is claimed
that her permanent assignment to orthopedics on Three
number of matters, particularly with respect to her relationship with Hayes,
I was impressed with her zeal on behalf of the Union and employees' needs
concerning welfare, and felt that this at times caused her testimony to veer
from the truth.
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LAFAYETTE HOME HOSPITAL
North was more arduous because it involved handling
orthopedic patients, the record reveals that most of the
patients on Two Main from which she was transferred were
terminal or stroke patients requiring complete care,
including lifting and turning.
I find, on the record as a whole, that the General Counsel
has failed to prove by a preponderance of the credible
evidence that, in issuing a disciplinary action report on
June 16 to Ernestine Fishman, and in subsequently
transferring her to a different floor of the hospital, the
Respondent did so because of union considerations.
Accordingly, I find that neither constitutes a violation of
Section 8(aX3) of the Act.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Lafayette Home Hospital, Inc., is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 1199, National Union of Hospital and Health
Care Employees, a/w Retail, Wholesale and Department
Store Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By maintaining a no-solicitation rule and enforcing a
no-distribution rule restricting employees' right to solicit
and distribute for the Union during their nonworking time
in areas of the hospital other than immediate patient care
areas, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
IV. THE EFFECT UPON COMMERCE OF THE UNFAIR
LABOR PRACTICES
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall. as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order and all objections thereto shall be
deemed waived for all purposes.
Upon the basis of the foregoing findings of fact, and
conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 9
The Respondent, Lafayette Home Hospital, Inc., Lafay-
ette, Indiana, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Maintaining a no-solicitation rule and enforcing a no-
distribution rule restricting employees' right to solicit and
distribute for the Union during their nonworking time in
areas of the hospital other than immediate patient care
areas.
(b) In any like manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization,
and to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(aX3)
of the Act, as modified by the Labor Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Announce to its employees that it has rescinded its
unlawful no-solicitation and no-distribution rules and
inform them that they have the right to solicit on behalf of
any labor organization during nonworking time on the
hospital premises other than in immediate patient care
areas and to distribute union literature during nonworking
time in nonworking areas other than in immediate patient
care areas.
(b) Post in conspicuous places at its hospital in Lafayette,
Indiana, including all places where notices to employees
are customarily posted, copies of the attached notice
marked "Appendix." 'o Copies of said notice, on forms
provided by the Regional Director for Region 25, after
being duly signed by an authorized representative of the
Respondent, shall be posted by it, as aforesaid, immediate-
ly upon receipt thereof, and be maintained by it for at least
60 consecutive days thereafter. Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of Section 8(a)(3 ) and (1) not
herein found.
io In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
837